(NYT Op-ed) Robert George+Sherif Girgis: A Baker’s First Amendment Rights

You need the First Amendment precisely when your ideas offend others or flout the majority’s orthodoxies. And then it protects more than your freedom to speak your mind; it guards your freedom not to speak the mind of another.

Thus, in classic “compelled speech” rulings, the Supreme Court has protected the right not to be forced to say, do or create anything expressing a message one rejects. Most famously, in West Virginia v. Barnette (1943), it barred a state from denying Jehovah’s Witnesses the right to attend public schools if they refused to salute the flag. In Wooley v. Maynard (1977), the court prevented New Hampshire from denying people the right to drive if they refused to display on license plates the state’s libertarian-flavored motto “live free or die.”

On Tuesday, the court will consider whether Colorado may deny Jack Phillips, the owner of Masterpiece Cakeshop, the right to sell custom wedding cakes because he cannot in conscience create them for same-sex weddings. Mr. Phillips, who has run his bakery since 1993, sells off-the-shelf items to anyone, no questions asked. But he cannot deploy his artistic skills to create cakes celebrating themes that violate his religious and moral convictions. Thus he does not design cakes for divorce parties, lewd bachelor parties, Halloween parties or same-sex weddings.

Colorado’s order that he create same-sex wedding cakes (or quit making any cakes at all) would force him to create expressive products carrying a message he rejects. That’s unconstitutional.